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Dismissing a further application for an injunction to prohibit the source from making any further disclosures, Lord Justice Stephens found that the reliefs sought were not necessary at this interlocutory stage.

Background

Colin Duffy, Alex McCrory and Henry Fitzsimons face criminal proceedings connected to a dissident gun attack on police officers on the Crumlin Road in December 2013.

The prosecution evidence relies on covert audio recordings of conversations the following day in Lurgan alleged to be between the plaintiffs.

In December 2014, the prosecution served committal papers on the plaintiffs which included a transcript of the covertly recorded conversations.

In January 2015, CD recordings of the conversations were served on the plaintiffs’ legal representatives. Copies of the CD were also in the possession of employees of the Public Prosecution Service, Northern Ireland Courts and Tribunals Service, the PSNI, and anyone to whom the plaintiffs may have made the materials available.

The Sunday World published articles in February 2015 and November 2015 which purported to quote from the covert audio recordings. The second article said the newspaper had obtained a 15 page disclosure document produced during interviews by the police.

The plaintiffs asserted that the source of the disclosure to the newspaper defendants was a police officer, and are suing the newspaper and the Chief Constable for compensatory, aggravated and exemplary damages.

As part of the interlocutory proceedings, the plaintiffs sought an injunction prohibiting the unidentified journalistic source from any further disclosure of the contents of the covert recordings and an order compelling the newspaper defendants to reveal the name or status of their source.

Specifically, the three men brought an application for:

High Court

Firstly, Lord Justice Stephens concluded that the plaintiffs had no arguable case that there was a real risk that the unidentified journalistic source would repeat the alleged unlawful acts and refused to grant an interlocutory injunction.

In the application for disclosure, the plaintiffs relied on section 10 of the Contempt of Court Act 1981 which provides that: “No court may require a person to disclose, nor is any person guilty of contempt of court for refusing to disclose, the source of information contained in a publication for which he is responsible, unless it be established to the satisfaction of the court that disclosure is necessary in the interests of justice or national security or for the prevention of disorder or crime.”

Lord Justice Stephens said that the plaintiffs had to establish that disclosure was necessary in relation to one or more of the following gateways.

Lord Justice Stephens accepted that some degree of disclosure would be in the interests of justice but the weight to be attached to that interest had to be assessed so that it can be taken into account in the balancing exercise. In relation to the newspaper defendants he did not consider that any significant weight should be attached at this stage.

Lord Justice Stephens said it was clear that the status of the source was crucial to the case against the Chief Constable and to the potential proceedings against the Attorney General for Northern Ireland. However, if the plaintiffs achieve all or substantially all of their relief from the newspaper defendants then the weight to be attached to this interest would be substantially reduced and a declaration or a declaration and an award of damages would be an adequate remedy.

Lord Justice Stephens accepted that disclosure of the identity of the source would be for the prevention of crime both on the basis of investigating whether a crime has been committed and on the basis of deterring a background in which crime breeds.

In all the circumstances, Lord Justice Stephens concluded that the disclosure of the name of the source was not so important that should override the public interest in protecting journalistic sources in order to ensure free communication of information to and through the press.

This conclusion was based on his assessment of the weight to be attached:

As this was an interlocutory decision, if at the trial the balance was to shift then the matter could be reconsidered.

Dismissing the plaintiffs’ application for an interlocutory injunction against the unidentified journalistic source, Lord Justice Stephens also declined to give leave to serve interrogatories on the Sunday World to obtain either the name of or the status of the source.